Terms and Conditions
TERMS AND CONDITIONS FOR THE DELIVERY AND MAINTENANCE OF SOFTWARE PRODUCTS
I. Delivery of Software Products
1 Scope of Contract
1.1 The software products (hereinafter referred to as the “programs”) shall operate as specified in the product description and more detailed in their user documentation. The user documentation may describe functions not ordered by the customer.
The programs shall embody all legal and other provisions the programs must comply with.
1.2 Park Bench Solutions, Inc. (“PBS”) shall transmit the programs to the customer in machine-readable format (object code) on data storage media or PBS may provide them for download from the Internet. Unless otherwise agreed, PBS may deliver the programs by e-mail. PBS shall provide the user documentation either as a printed copy or in electronic format.
1.3 In the event PBS’s programs have interfaces for interoperability with other programs, PBS shall provide information for the use of the interfaces, if so requested by the customer, subject to reimbursement of PBS’s expenses. The customer may pass such information on to other contractors to the extent necessary.
1.4 To the extent that programs are specified in the contract as products of pre-suppliers, PBS shall only be liable for the correctness of features of these products as they are substantial for the usage of the application programs of PBS. Other than the foregoing, PBS does not assume any warranties or liabilities, neither express nor implied, for any information in the product descriptions of the respective manufacturers.
For these programs shall not assume any duty for defect removal or for maintenance services. However, in cases of material defects, PBS shall use its best endeavors for defect removal by the manufacturer to the extent that the manufacturer agrees to it in accordance with its business policy.
2 Right of Use
2.1 The scope and limits of the customer’s right to use the programs are specified in the contract.
2.2 The fee for the right of use is determined by the extent of the customer’s right of use, in particular by the subscriber size of the configuration and/or the maximum number of authorized users. Unless otherwise agreed, the customer is only entitled to use the programs on designated IT system (single user license). If the customer wants to extend the right of use, the customer shall pay additional compensation in advance of the extended use.
If a single user license is agreed on, the customer may replace the designated IT system by another IT system used by the customer, but the customer is only entitled to use the programs on (1) one IT system at the same time.
2.3 The customer agrees to use the programs only on configurations PBS has declared to be compatible with the programs. The customer shall inform PBS of any modifications of the customer’s configuration without delay.
2.4 The customer may transfer the granted right of use per program to another user through resale of the programs if the customer confirms to discontinue the use of the programs and if the new user accepts in writing towards PBS to take over all obligations to the protection of the programs and to comply with the restrictions of the right of use as they were agreed on between the customer and PBS.
If PBS has granted the customer an unrestricted right of use, in particular without limitation, a company or enterprise license, this right of use is not transferable. In the event of substantial expansion of the customer’s enterprise or the customer’s group of companies in any way, the license fee shall be re-negotiated. Substantial is defined as at least 10% increase of revenues at the time of the expansion in relation to the time of the grant of the original license by PBS.
2.5 The customer shall only modify or enhance the programs and the related documentation within the limits such actions are permissible by the use of the administrator functions and rights provided by PBS.
3.1 It shall be the responsibility of the customer to install the programs on the customer's IT systems. At the request of the customer, PBS shall install the programs in return for compensation based on expense and execute a brief training session. The customer shall confirm the successful installation in writing in such a case.
If it is agreed that PBS shall install the programs, the customer shall ensure that qualified operating staff are available by the time of installation at the latest. The customer shall, in particular, ensure that the customer’s operating staff shall possess all necessary system administrator rights as well as all necessary network rights.
PBS recommends that the customer train its employees in a training course by PBS.
3.2 It shall be the responsibility of the customer to bring the programs into operation. To this end, the customer shall inspect the programs under their conditions of use before the customer uses the programs productively. PBS is prepared to assist the customer in this respect upon request in return for compensation based on expense.
3.3 The customer shall examine all PBS performances for defects without delay, if appropriate in the proper course of business. In particular, the customer shall examine programs designed only for occasional use.
3.4 PBS shall appoint a customer adviser and the customer a contact person. The customer adviser and contact person shall either make decisions or bring about decisions without delay.
The customer adviser shall record decisions in writing. The contact person shall be available to PBS to provide all necessary information. PBS is obliged to involve such contact person if necessary for the execution of the agreement.
4 The Customer's Duties on Software Protection
4.1 The customer acknowledges that the programs, including the user documentation and additional documents, even in future versions, are copyright-protected and constitute business and trade secrets proprietary to PBS. The customer shall ensure with no limit in time that the programs are protected from misuse.
If PBS provides source codes the customer shall make the programs accessible only to employees creating and processing object codes derived from the source code.
4.2 If PBS provides programs in source code, the customer shall only make them accessible to any third party with PBS’s prior written consent. PBS shall not unreasonably withhold such consent, but PBS does not need to give it to enable the customer to obtain maintenance services for the programs from a third party.
4.3 The customer shall not create programs derived from the programs.
The customer shall use the user documentation for internal purposes only and only copy it to the extent admissible with regard to the customer’s right of use. The customer shall not translate, modify or enhance the user documentation or develop any works based on the user documentation.
II. Modifications and Enhancements
5.1 In the event that modifications and/or enhancements are agreed on in the contract, the customer may use modifications and enhancements of the standard programs to the same extent as the customer is entitled to use the related standard programs.
5.2 PBS shall deliver modified standard programs in object-code only. PBS shall deliver enhancements of the standard programs or other additional individual programs in source code, only if this is agreed upon in the contract. The documentation related to the source code shall only be delivered, if this is expressly agreed upon in the contract.
5.3 PBS shall deliver a user documentation only if expressly agreed upon in the contract. In this event the following shall apply: The user documentation for modifications and enhancements need not be integrated into the user documentation of the related standard programs, but shall be delivered as an addition thereto.
6.1 If it is necessary to detail the customer's requirements listed in the contract or requested pursuant to Section 7.1, PBS shall develop a detailed specification with the customer's assistance and shall submit it to the customer for approval. The customer shall respond in writing within 14 days. Unless otherwise agreed, this performance shall be remunerated by the customer on the basis of time and material in accordance with PBS’s valid price list.
6.2 The approved detailed specification is the decisive basis for the realization of the programming.
In the course of the realization of the programming, the detailed specification may be further detailed with the customer's assistance.
6.3 In addition, Section 3 shall apply.
7 Change Requests
7.1 If the customer requests PBS to undertake any modification of the agreed requirements, including any addition to it, and if the requested modification is reasonable and acceptable, PBS must agree. If the realization of such a request results in any burden on PBS’s side, PBS is entitled to an appropriate adaptation of the terms of the contract, in particular to the extension of time for the completion of the programming and/or to additional compensation.
7.2 Modifications and resulting adaptations of the terms of the contract must be confirmed in writing by both parties. If the customer gives a request for a modification orally, PBS may request the customer to give it in writing or PBS may confirm it in writing. The wording of such confirmation of PBS shall be deemed to express the customer's requirement correctly unless the customer objects in writing without delay.
7.3 PBS shall submit its request for adaptations of the contract without delay. The customer shall notify PBS without delay if the customer refuses the requested adaptation.
III. Maintenance and Support
8 Subject Matter
8.1 If maintenance and support are agreed on in the contract, maintenance and support services shall include the delivery of further developed versions of the programs, the remedy of defects and telephone and / or electronic support during the usual business hours of PBS, in return for a lump-sum compensation.
Support shall be performed starting with the installation of the programs.
8.2 All other performances shall be compensated separately, in particular the installation of further developed versions, the transfer of customer specific modifications to further developed standard versions, and the adaptation of customer specific enhancements to further developed versions.
8.3 The maintenance and support agreement shall run for an indefinite period of time. It may be terminated by the customer or by PBS to the end of a contract year, in writing, giving 3-months-notice.
PBS may not terminate until the end of the paid support year, but is entitled to termination with the option of alterations to the agreement even earlier on objective grounds, particularly in the event support for system software required by the programs or other software needed for the operation of the programs is limited by the supplier thereof.
9 Correction of Defects
9.1 Defects are defined as deviations from the features the programs shall have in accordance with Section 1.1 or which they must have for customary use.
9.2 The duty to remove defects as a specified performance and to provide telephone and / or electronic support shall relate to the current and the preceding version of the programs. Support for the preceding versions shall end 6 months after the release of the latest version. However, such duty shall continue to exist if the acceptance thereof would be unreasonable to the customer, provided PBS is capable of rendering such performances. In the above case, PBS is entitled to claim for added costs and expenses, including costs and expenses accruing for maintenance of the required support and maintenance environment.
9.3 Section 16 shall apply accordingly for the execution of defect removal as a specified performance.
10 Further Development of the Programs under Maintenance
10.1 PBS shall deliver further developed standard versions including associated documentation to the customer as set forth in Section 1.2, after the release of such versions by PBS. The above shall not apply to enhancements PBS offers separately, as new programs in PBS’s price list.
The customer shall test new versions before the customer uses them for productive purposes.
10.2 In the event the manufacturer of the system software necessary for use of the programs for which PBS performs maintenance and support releases a new version of the system software under a maintenance agreement with PBS, PBS shall examine after the availability thereof whether such version works properly together with PBS’s programs under maintenance with the customer. If that is the case, PBS shall release such version (cf. Section 2.3). Otherwise, PBS shall adapt PBS’s programs to the further developed version of the system software within a reasonable period. The reasonable period shall begin upon the release and availability thereof for PBS.
10.3 For system software whose manufacturers do not offer new versions within the framework of maintenance and support performances, instead offering new generations for sale from time to time, the following shall apply: In the event the manufacturer offers improvements (e.g. service packs), PBS shall act in accordance with Section 10.2.
In the event the manufacturer offers a new generation, PBS shall evaluate if PBS adapts PBS’s programs to the new generation with due regard for user requirements. In the event PBS adapts PBS’s programs to the new generation, PBS shall only further develop the programs on this basis.
10.4 The customer shall ensure that the customer’s IT-equipment, particularly the system software thereof meets the state of technology required by the programs under maintenance within the framework of further development in accordance with Sections 10.2 and 10.3. PBS shall notify the customer promptly which state of technology must be provided for maintenance and support services.
The customer shall not introduce a new system software version until PBS has released the programs for such version (cf. Section 2.3).
The customer shall notify PBS in advance if the customer plans to install a new version of the required system software.
10.5 Sections 10.2 through 10.4 shall apply accordingly for other third-party programs with which PBS’s programs are to work together. Sections 10.3 and 10.4 shall also apply for third party programs which are freeware or in the public domain.
10.6 PBS agrees to further develop the respective current version in the event changes in legal regulations or other provisions applicable for the programs require such further development.
10.7 Not covered by the lump-sum maintenance compensation shall be the inclusion of changes pursuant to Sections 10.2 through 10.6 which can only be realized through full or partial reprogramming of the programs, or changes pursuant to new regulations or provisions. In such a case, PBS may request a reasonable additional compensation with due regard for all customers which require and request reprogramming.
10.8 PBS shall keep further developed versions of the programs compatible with the preceding version with regard to PBS own performances. However, if circumstances not attributable to PBS cause the incompatibility of the programs, e.g. if pre-supplier programs cause the incompatibility, PBS shall only be obliged to transmit the migration aids provided by the presupplier.
11 Compensation for Maintenance
11.1 The lump-sum compensation shall be calculated in accordance with the specified scope of use (cf. Section 2.1). The compensation shall be adjusted as soon as such scope increases.
11.2 The customer shall pay the lump-sum compensation annually in advance.
11.3 PBS is entitled to request the compensation which PBS charges upon the conclusion of new maintenance agreements pursuant to the price list, effective next calendar year, with a notice period of 3 months. PBS is obliged to pass reductions on without a notice period.
12 Maintenance of Modifications and/or Enhancements
12.1 As long as there is an agreement on basic maintenance of the standard programs, PBS shall render maintenance for modifications and/or enhancements performed for the customer subject to remuneration on the basis of costs if so requested by the customer. The correction of defects shall be free of charge during the warranty period.
12.2 If maintenance of modifications and/or enhancements performed for the customer is agreed to subject to a comprehensive charge, PBS shall render the same services as for the standard programs. The comprehensive charge shall cover also the transfer of modifications/enhancements onto new versions of the standard programs, and if needed the adaptation of the customer’s individual programs to new versions. The customer is entitled to terminate the maintenance pursuant to Section 8.3 regardless of the termination of the maintenance of the standard programs.
IV. General Terms and Conditions
13 Charges and Payments
13.1 The license fee for the software shall be due after delivery is made.
13.2 All support performances (particularly pre-installation support, preparations for use, installation and demonstration of operational readiness, conversion of old data, instruction, training or consulting) shall be compensated based on expense, unless otherwise agreed. In case of remuneration per expense, hourly rates, travel expenses and ancillary costs shall be remunerated in accordance with the contract, or, if not specified in the contract, in accordance with PBS’s price list, respectively. PBS may invoice monthly.
13.3 Payments shall be made in full within 30 days after invoicing.
13.4 Duties, taxes and levies shall be paid by the customer on all prices.
13.5 If payments are delayed, the customer shall not be allowed to use the programs.
14 Disruptions in the Performance
14.1 In the event that a cause, for which PBS is not responsible, including strikes or lockouts, impairs compliance with a deadline, PBS may request reasonable extension of the deadline.
In the event the expense is increased due to a cause falling within the scope of responsibility of the customer, PBS may request reimbursement for its added expenses as well.
15 Telephone Support
15.1 On request by PBS, the customer shall enable PBS to perform telephone support to the extent technically possible. In concert with PBS, the customer shall at its own expense provide a telecommunication connection as needed to meet the requirements from time to time, so that the IT systems can be connected.
The customer shall pay for the communication costs, unless otherwise agreed.
15.2 For security and privacy purposes, access to the customer’s IT system by PBS shall be controlled by a security procedure established by the customer. The customer shall release the connection for usage. PBS shall inform the customer of the works performed by PBS.
15.3 If the customer does not enable PBS to perform tele support, the customer shall reimburse PBS additional costs, in any event travel time and additional costs for the correction of defects.
15.4 If the customer transfers data to PBS for their restoration or for the search of defects, PBS shall establish all technical and organizational measures in PBS’s organization equivalent to those the customer has to establish for security and privacy pursuant to the laws and statutes on data protection applicable to the customer. At the customer’s request, details shall be agreed on separately.
16 Agreements on the Remedy of Defects
16.1 In the event defects occur during contractual use of the programs, the customer shall give notice of such defects in comprehensible form, specifying information useful for identification of the defect, and, upon the request of PBS, in writing.
A precondition for all claims against PBS shall be that the defect is reproducible or can be displayed through mechanically generated copies.
The customer shall assist PBS, within reasonable limits, in the removal of defects, particularly transmitting the program as used upon occurrence of the defect, at the request of PBS, making available machine time or integrating replacement deliveries provided by PBS.
16.2 PBS shall remove defects within a reasonable period. PBS shall render the supplementary performance either by removing the defects or rendering a replacement performance within a reasonable period, at its option. In the event of defects which seriously impair use of a program,
PBS shall provide a workaround solution prior to the final supplementary performance, if necessary, so that the defect no longer has a serious impact.
PBS need only remove other defects at the time scheduled by PBS within the framework of proper version support. PBS shall provide workaround solutions for such defects as well if such is reasonable for PBS (in the event of programs expressly identified as such by presuppliers),
PBS need only attempt corrective measures of the pre-supplier.
16.3 The duty for supplementary performance shall expire for programs which the customer modifies or in which the customer otherwise intervenes, unless the customer demonstrates that the intervention did not cause the defect.
16.4 PBS may request reimbursement for its own expenses in the event PBS performed work based on receiving notice of a defect (beyond telephone support in accordance with Section 8.1) and the customer fails to demonstrate a defect.
17 PBS’s Liability
17.1 In the event PBS defaults on its performances (through delivery) or supplementary performances (through removal of defects or replacement delivery), the customer may set a reasonable period for performance or supplementary performance. If the period expires without result, or if the performance or supplementary performance ultimately fails in any other manner, the customer may assert its statutory claims. Damage claims shall exist within the framework of Section 17.3. PBS may request a period for the customer to declare whether the customer still requests primary or supplementary performance. If the customer does not request primary or supplementary performance within this period, the customer shall no longer be entitled to claim it.
17.2 The limitation period for claims based on defects shall be 24 months starting from the delivery of the programs to the customer. The extension of the right of use (Section 2.2) or the delivery of a further developed version under the maintenance agreement (Section 11) shall not cause a new limitation period.
17.3 PBS – including any person engaged in performing any obligation under this contract – shall be liable for damages under any claim based on normal negligence only if PBS breaches a basic obligation of the contract which jeopardizes the contract goal (cardinal obligation). In this event PBS’s liability shall be restricted to the contract value. In the event of claims on the grounds of a maintenance agreement, the yearly comprehensive maintenance charge for the year, in which the damage occurs, shall be taken as the contract value.
The restrictions shall not apply to the extent the damages are covered under PBS’s business liability insurance, provided the insurance company has paid.
Claims for personal injury and claims based on the German Product Liability Act shall remain unaffected.
18.1 The contract and its modifications require written form.
18.2 The contract shall conform with and be governed by the laws of the US State of Florida without regard to its choice of law rules. Exclusive venue shall be PBS's main place of business.
END USER LICENSE AGREEMENT (“AGREEMENT”)
PLEASE READ CAREFULLY: IF YOU HAVE ANOTHER VALID, SIGNED AGREEMENT WITH PBS WHICH APPLIES TO THE SPECIFIC SOFTWARE, CLOUD SERVICES OR HOSTED SERVICES, YOU WILL BE DOWNLOADING, ACCESSING OR OTHERWISE RECEIVING (INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS THE “PRODUCTS”), THAT OTHER AGREEMENT SHALL CONTROL YOUR USE OF SUCH PRODUCTS AND, IF APPLICABLE, RELATED SERVICES (AS DEFINED BELOW). OTHERWISE, BY USING, DOWNLOADING, INSTALLING, COPYING, OR ACCESSING PRODUCTS, OR BY CLICKING ON “I ACCEPT” ON OR ADJACENT TO THE SCREEN WHERE THIS AGREEMENT MAY BE DISPLAYED, YOU HEREBY AGREE TO BE BOUND BY AND ACCEPT THE TERMS OF THIS AGREEMENT (“ACCEPTANCE”).
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT: 1) DOWNLOAD OR INSTALL THE SOFTWARE, OR 2) ACCESS OR REGISTER TO ACCESS ANY CLOUD SERVICES OR HOSTED SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, AND DELIVERY OF THE PRODUCTS IS AFFECTED, DO NOT USE, DOWNLOAD, INSTALL, COPY, OR ACCESS THE PRODUCTS. PROMPTLY RETURN THE PRODUCT WITH PROOF OF PURCHASE TO THE PARTY FROM WHOM YOU ACQUIRED IT AND OBTAIN A REFUND OF THE AMOUNT YOU PAID, IF ANY. IF YOU DOWNLOADED ANY SOFTWARE, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF ANOTHER PERSON OR PERSONS, COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND EACH PERSON, COMPANY, OR LEGAL ENTITY TO THIS AGREEMENT. THIS AGREEMENT IS ENTERED INTO BY AND BETWEEN PARK BENCH SOLUTIONS, INC. AND ANY ENTITIES, REGARDLESS OF CORPORATE STATUS, CONTROLLED BY, CONTROLLING, OR UNDER COMMON CONTROL WITH PARK BENCH SOLUTIONS, INC. (COLLECTIVELY, “PBS”, “WE, “US” OR “OUR”) AND YOU, YOUR CO-WORKERS, YOUR EMPLOYEES, AGENTS AND CONTRACTORS AND ANY OTHER PERSON OR PERSONS, COMPANY OR OTHER LEGAL ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT (COLLECTIVELY, “CUSTOMER”, “YOU” OR “YOUR”).
FURTHER, YOU WARRANT AND AGREE THAT YOU ARE NOT (A) A CITIZEN, NATIONAL OR RESIDENT OF, AND ARE NOT UNDER THE CONTROL OF, THE GOVERNMENT OF: CUBA, IRAN, NORTH KOREA, SUDAN, SYRIA, OR ANY OTHER COUNTRY TO WHICH THE UNITED STATES HAS PROHIBITED EXPORT, OR (B) LISTED ON THE UNITED STATES TREASURY DEPARTMENT’S LISTS OF SPECIALLY DESIGNATED NATIONALS, SPECIALLY DESIGNATED TERRORISTS, OR SPECIALLY DESIGNATED NARCOTIC TRAFFICKERS, OR LISTED ON THE UNITED STATES COMMERCE DEPARTMENT’S TABLE OF DENIAL ORDERS. YOU FURTHER WARRANT AND AGREE THAT YOU WILL NOT (1) DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE PRODUCTS OR MATERIALS, DIRECTLY OR INDIRECTLY, TO PERSONS ON THE ABOVE-MENTIONED LISTS, (2) USE THE PRODUCTS OR MATERIALS FOR, AND WILL NOT ALLOW THE PRODUCTS OR MATERIALS TO BE USED FOR, ANY PURPOSES PROHIBITED BY UNITED STATES OR OTHER APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION, FOR THE DEVELOPMENT, DESIGN, MANUFACTURE OR PRODUCTION OF NUCLEAR, CHEMICAL OR BIOLOGICAL WEAPONS OF MASS DESTRUCTION, AND (3) DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE PRODUCTS OR MATERIALS, DIRECTLY OR INDIRECTLY, TO THE ABOVE-MENTIONED COUNTRIES OR TO CITIZENS, NATIONALS OR RESIDENTS OF THOSE COUNTRIES.
1. Governance. Upon your Acceptance, the following shall govern your use of the Products, except to the extent all or any portion are (a) subject to a separate written, duly executed agreement, or (b) also subject to the terms of an Addendum at the end of this Agreement, in which case the terms of such Addendum shall control over inconsistent terms in this Agreement.
“Cloud Services” means a combination of computing tools and support services which is provided by PBS as an online, internet-based service and may include components for on-premises deployment.
“Documentation” means text material that accompanies an item of Licensor Software on delivery, describing how to make use of that software.
“Hosted Services” means online, internet based computing services provided by PBS.
“Materials” means any tangible or intangible information, design, specification, instruction or data (and any modifications, adaptations, derivative works or enhancements) provided by Licensor during the performance of Consulting Services which incorporates, reinforces or is used to apply Licensor’s configuration or implementation methodologies, processes and know-how to Licensee’s use of the Licensor Software, excluding Output.
“Order Form” means any purchase order or similar document, written agreement, or a web store or website order or registration requesting Products.
“Products” shall have the meaning set forth in the introductory paragraph at the beginning of this Agreement.
“Provider” means the entity or entities licensing the service to PBS.
“Purchase Date” means the date the Order Form is accepted by us and in the case of a web store or web site transaction, the date of your download or access of a Product. If proprietary source code is included as part of the standard delivery of a Product and is not subject to open source license terms, use of such source code is controlled by the terms of this Agreement.
“Software” the product described in a Software License Agreement in object code format, including any Updates provided to Licensee pursuant to this Agreement.
“Updates” means Product bug fixes, enhancements, and updates, if and when made generally available by us as part of Maintenance.
3. License Grant. The Products are the property of PBS or its licensors and are protected by copyright and other laws. While PBS continues to own or have license rights to the Products, we hereby grant you a limited, non-transferable, non-exclusive license, subject to the terms and conditions of this Agreement, to use the number of units set forth in the Order Form solely for your internal business use.
4. License Term. The term of each license for a Product shall be either perpetual or limited as designated on an Order Form.
5. Delivery. Products are delivered electronically, and delivery deemed complete when duly made available to you.
6. Hosted Services. We shall use commercially reasonable efforts to make the Hosted Services you have purchased available 24 hours a day, 7 days a week, except for: (a) planned downtime under our direct control (of which we shall give at least 8 hours-notice via the Hosted Services), (b) third party service provider‘s downtime to the extent we are notified by third party service providers of planned downtime (of which we shall provide such notice to you via the Hosted services as soon we can reasonably do so), or (c) any unavailability caused by circumstances beyond our reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, internet service or third party hosting provider failures or delays (“Force Majeure”). Hosted Services are provided in accordance with applicable laws and government regulations.
7. Hosted Services and Cloud Services Restrictions.
B. You represent and warrant that you will not use Hosted Services or Cloud Services to promote any illegal activities or post any materials in violation of any law. In addition, in using and accessing Hosted Services, or Cloud Services, you shall not use any third party software in connection with a Provider’s or PBS service in any manner that requires, pursuant to the license applicable to such software, that any Provider or PBS property or services be: (1) disclosed or distributed in source code form; (2) made available free of charge to recipients; or (3) modifiable without restriction by recipients. You represent and warrant that no software or content provided by you or your users in connection with your use of Hosted Services or Cloud Services will contain any malicious or hidden mechanism or code for the purpose of damage or corrupting the Hosted Services, Cloud Services or the Provider service.
C. You are solely responsible for adequate security, protection and backup of your data and content. We are not responsible for Provider services, unauthorized access to your data or content, or the deletion, destruction, damage, loss or failure to store any of your content or other data that you submit or use in Hosted Services or Cloud Services.
8. Restrictions. You shall not (a) use any unlicensed versions of the Software; (b) use any Software not listed in an Order Form, even if such unlicensed software is made available to you as part of the general delivery mechanism for the Products; (c) provide access to the Products to anyone other than employees, contractors, or consultants who agree in writing to be bound by terms at least as protective of PBS as those in this Agreement; (d) sublicense, transfer, assign, distribute to any third party, pledge, lease, rent, or commercially share the Products or any of your rights under this Agreement (for the purposes of the foregoing a change in control of your company is deemed to be an assignment); (e) use the Products for purposes of providing a service bureau, including, without limitation, providing third-party hosting, or third-party application integration or application service provider-type services, or any similar services; (f) use the Products in connection with ultra-hazardous activities, or any activity for which failure of the Products might result in death or serious bodily injury to you or a third party; or (g) directly or indirectly, in whole or in part, modify, translate, reverse engineer, decrypt, decompile, disassemble, make error corrections to, create derivative works based on, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Products. You may engage in such conduct as is necessary to ensure the interoperability of the Software as required by law, provided that prior to commencing any decompilation or reverse engineering of any Software, you agree to observe strict obligations of confidentiality and provide us reasonable advance written notice and the opportunity to assist with or conduct such activity on your behalf and at your expense.
9. Proprietary Notices. The Products, Documentation and Materials are proprietary to PBS and its licensors and protected by applicable U.S. and international patent, copyright, trademark and trade secret laws. PBS and its licensors shall retain ownership in the Products, Documentation and Materials; all derivatives thereof (in whole or part); and any intellectual property or other rights embodied therein. All proprietary notices incorporated in or affixed to any Products, Documentation or Materials shall be duplicated by you on all copies of the Products, Documentation, or Material, as applicable, and shall not be altered, removed or obliterated.
10. Limited Warranty.
A. If you obtained Software directly from us, we warrant for a period of thirty (30) days from the Purchase Date that (i) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (ii) the Software will substantially conform to its Documentation. This limited warranty extends to you personally and is not transferable. Your sole and exclusive remedy and the entire liability of PBS and its licensors under this limited warranty will be, at our option, to repair or replace (with respect to the affected Software product), or refund the Software license fee. In the event of a refund, this Agreement shall terminate solely with respect to the affected Software product, and you shall immediately cease all use of and return or destroy all copies of such Software.
B. EXCEPT AS SPECIFIED IN THIS LIMITED WARRANTY, THE PRODUCTS ARE PROVIDED “AS IS”. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. NO WARRANTY IS MADE REGARDING THE RESULTS OF ANY PRODUCTS, THAT THE PRODUCTS WILL OPERATE WITHOUT ERRORS, PROBLEMS OR INTERRUPTIONS, THAT ERRORS OR BUGS WILL BE CORRECTED, OR THAT THE PRODUCT FUNCTIONALITY OR SERVICES WILL MEET YOUR REQUIREMENTS. NO TIBCO DEALER, DISTRIBUTOR, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THIS WARRANTY ON TIBCO’S BEHALF.
11. Indemnity. If you obtained the Software from us directly, then we agree at our own expense to defend or, at our option, to settle, any claim or action brought against you to the extent it is based on a claim that the unmodified Software infringes any patent issued by the United States, Canada, Australia, Japan, or any member of the European Union, or any copyright, or any trade secret of a third party. We will indemnify and hold you harmless from and against any damages, costs and fees reasonably incurred (including reasonable attorneys’ fees) that are attributable to such claim or action and which are assessed against you in a final judgment provided that you promptly notify us in writing of such claim, we have the exclusive right to control such defense and/or settlement, and you provide reasonable assistance (at our expense) in the defense thereof. In no event shall you settle any claim, action or proceeding without our prior written approval. In the event of any such claim, litigation or threat thereof, we, at our sole option and expense, shall (a) procure for you the right to continue to use the Software, or (b) replace or modify the Software with functionally equivalent software. If such license or modification is not commercially reasonable (in our sole reasonable opinion), we may cancel this Agreement with respect to the affected Software product upon sixty days prior written notice to you and refund to you the unamortized portion of the associated license fees paid by you to us based on a five-year straight-line depreciation. This Section states our entire liability with respect to the infringement of any intellectual property rights, and you hereby expressly waive any other liabilities or obligations we have with respect thereto. The foregoing indemnity shall not apply to the extent that (x) any claim is based on or attributable to modifications made by you to the Software, or portions thereof, (y) such claim would have been avoided by use of the then-current release version of the Software, or (z) your continued allegedly infringing activity after being provided with modifications that would have avoided the alleged infringement.
12. Limitation of Liability.
A. EXCEPT AS PROVIDED UNDER THE INDEMNITY ABOVE; OR IN CONNECTION WITH THE MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, TRADE SECRETS; DAMAGES FOR BODILY INJURY, DEATH, DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; OR INTENTIONAL OR GROSS NEGLIGENCE (THE “EXCLUDED MATTERS”), IN NO EVENT WILL EITHER PARTY OR DAT BLUE’S LICENSORS BE LIABLE FOR ANY LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA, LOST REVENUE, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, DAMAGE TO REPUTATION, BUSINESS INTERRUPTION, DOWNTIME COSTS, OR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR TYPE OF DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OR THE INABILITY TO USE THE PRODUCTS, EVEN IF A PARTY HAS BEEN ADVISED OR WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH COSTS, EXPENSES OR DAMAGES.
B. EXCEPT FOR THE EXCLUDED MATTERS, IN NO EVENT SHALL A PARTY’S LIABILITY TO THE OTHER, WHETHER IN CONTRACT, TORT (INCLUDING ACTIVE OR PASSIVE NEGLIGENCE), BREACH OF WARRANTY, CLAIMS BY THIRD PARTIES OR OTHERWISE, EXCEED THE PRICE PAID BY YOU UNDER THE APPLICABLE ORDER FORM.
C. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED REMEDY OR LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT ALLOWED BY LOCAL LAW, THESE LIMITATIONS WILL APPLY REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, MISREPRESENTATION, BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT OR OTHERWISE.
A. “Confidential Information” means any information disclosed by either party, whether or not marked, including, without limitation, the terms of this Agreement; the Products; Materials; individual contact information provided by either party; Product or related performance test results derived by you, including but not limited to benchmark test results; and your Protected Data (as defined in Section B below) and Output. Each party agrees to protect Confidential Information in the same manner as it protects its own Confidential Information (but using no less than a reasonable degree of protection) and shall only disclose Confidential Information to those with a need to know that information and who have agreed in writing to be bound by terms at least as protective as those contained in this Agreement. Information will not be deemed Confidential Information if (i) available to the public other than by a breach of a confidentiality obligation, (ii) rightfully received from a third party not in breach of a confidentiality obligation, (iii) independently developed by one party without use of the Confidential Information of the other; (iv) known to the recipient at the time of disclosure (other than under a separate confidentiality obligation); or (v) produced in compliance with applicable law or court order, provided the other party is given reasonable advance notice of the obligation to produce Confidential Information. Each party agrees to indemnify the other for any damages (including reasonable expenses) the other may sustain resulting from the unauthorized use and/or disclosure of the other’s Confidential Information. The parties further agree that money damages would not be a sufficient remedy for a breach of confidentiality. The parties shall be entitled to seek injunctive or other equitable relief without the necessity of posting a bond even if otherwise normally required. Such injunctive or equitable relief shall not be the exclusive remedy for any breach of confidentiality, but shall be in addition to all other rights and remedies available at law or in equity.
B. To the extent we are exposed to individual personal data owned or otherwise held by you during the provision of Hosted Services or Cloud Services which is subject to various data protection laws and/or regulations (“Protected Data”), we agree to treat such Protected Data in accordance with PBS’s Customer Privacy and Security Statement which is in place to meet our obligations for the protection, integrity and confidentiality of any Protected Data which exceed our standard obligations to safeguard Confidential Information.
C. Confidential Information shall remain the sole property of the disclosing party, and each party acknowledges and agrees that it does not acquire any rights therein. Use by a recipient of Confidential Information for the purposes contemplated under this Agreement, including, but not limited to, any configuration or use by you of Products or Materials shall not affect or diminish the disclosing party’s rights, title and interest in and to Confidential Information.
D. We may use any individual contact information provided by you or your users for support, product information and other business to business communications in connection with this Agreement. In the event you or your users wish to opt-out from receiving such communications, you or your users should do so on the web store or website page where you originally submitted your information. Please note that communications may still be transmitted after the opt-out request has been submitted but before it has been processed.
E. You acknowledge and agree that any feedback, suggestions, comments, improvements, modifications and other information (including any ideas, concepts, “know-how” or techniques contained therein) that you provide to us about our Products or their performance (collectively, “Feedback”) shall not be deemed as your Confidential Information and may be used, disclosed, disseminated and/or published by us for any purpose, including developing, manufacturing and marketing products incorporating Feedback, without obligation of any kind to you, and you waive any rights whatsoever in or to all Feedback.
14. Export. Products, Documentation, Materials and related technical data, are subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations and may be subject to export or import regulations of other countries. You agree that you will not nor permit your users to export or re-export the Licensor Software, Documentation and Materials in any form in violation of any applicable export or import laws of any jurisdiction.
15. Government Use. If the Products are being or have been acquired with U.S. Federal Government funds, or you are an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, including technical data, or manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. The Products are COMMERCIAL ITEMS AS DEFINED BY THE FEDERAL ACQUISITION REGULATION. Use by the Government is further restricted according to the terms of this Agreement and any amendment hereto.
16. Entire Agreement. This Agreement, and any terms which are incorporated by written reference (including written reference to information contained in a URL, Documentation or reference policy) constitutes the entire agreement between the parties with respect to the use of the Products, and supersedes all proposals, oral or written, and all other representations, statements, negotiations and undertakings relating to the subject matter hereof. All orders of Products by you to us shall be deemed to occur, with or without reference, under the terms of this Agreement, unless expressly superseded by a signed written agreement between the parties. Except for additional terms you have agreed to in connection with our web stores or web sites, none of the terms of the Order Form (other than the product names and fees due in connection therewith) shall apply for any reason or purpose whatsoever, regardless of any statement on any Order Form to the contrary. Neither the license to use granted in this Agreement nor the obligation to pay license fees are dependent upon the supply of any other software program or product.
A. This Agreement and all Order Forms shall automatically terminate if either party files for bankruptcy, or otherwise goes into receivership, becomes insolvent or makes an assignment for the benefit of creditors.
B. In the event of a termination, for any reason, of PBS Provider service accounts upon which we rely to provide Hosted Services to the extent you have pre-paid us fees for Hosted Services to us, we will refund, as of the date of notice of termination from Provider to us, for the unearned pro-rata portion of the prepaid fees.
C. You may terminate this Agreement in its entirety at any time, in regard to Software, by destroying all copies of the Software.
D. If a license, Cloud Services, or Hosted Services under this Agreement terminates or expires, or upon termination of this Agreement in its entirety for any reason, you shall (i) cease using the Products, Documentation, and related Confidential Information, and (ii) return or notify us in writing within thirty (30) days after termination that you have destroyed any Software, Documentation, related Confidential Information, and all copies thereof, whether or not modified or merged into other materials.
E. Termination of this Agreement, any license, Cloud Services, Hosted Services, or any Order Form shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve you of your obligation to pay all fees that have accrued or are otherwise owed by you under this Agreement. Except as set forth in sections entitled “Termination”, “Limited Warranty” or “Indemnity”, all fees paid under or in connection with this Agreement are non-refundable and no right of set-off exists. The parties’ rights and obligations under this section and sections entitled “Limited Warranty”, “Indemnity”, “Limitation of Liability”, “Proprietary Notices”, “Confidentiality”, “General”, “Governing Law” and your warranties in connection with Hosted Services or Cloud Services, shall survive the expiration or earlier termination of this Agreement.
18. Open Source Software. If you use any third party software not supplied by us, including any open source software, in conjunction with any Product, you must ensure that such use does not require any of the following, pursuant to the terms of such software: (i) disclosure or distribution of any Product in source code form; or (ii) licensing of any Product for the purpose of making derivative works; or (iii) redistribution of any Product at no charge. For the avoidance of doubt, you may not combine Product with any software licensed under any version of or derivative of the GNU General Public License (“GPL”) in any manner that could cause, or could be interpreted or asserted to cause, the Product or any modifications to the Product to become subject to the terms of the GPL.
19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the US State of Florida, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are excluded from application hereto.
Last modified: June 22, 2017
PARK BENCH SOLUTIONS, INC., a Delaware corporation ("Company" or "We") respect your privacy and are committed to protecting it through our compliance with this policy.
This policy describes the types of information we may collect from you or that you may provide when you purchase any software from the Company or any authorized reseller or if you visit the Company’s website (our "Website") and our practices for collecting, using, maintaining, protecting, and disclosing that information.
This policy applies to information we collect:
On our Website.
In email, text, and other electronic messages between you and this Website.
Through software you purchase from the Company or its authorized resellers.
Through SaaS products.
It does not apply to information collected by:
Any third party products or services that you choose to integrate with our products or services. You should always review the policies of third party products and services to make sure you are comfortable with the ways in which they collect and use your information
Information We Collect About You and How We Collect It
We collect several types of information from and about users of our products, services and Website, including information:
by which you may be personally identified, such as name, postal address, e-mail address, telephone number, social security number or any other identifier by which you may be contacted online or offline ("personal information");
that is about you but individually does not identify you; and/or
about your internet connection, the equipment you use to access our Website and usage details.
We collect this information:
Directly from you when you provide it to us.
Automatically as you navigate through the Website. Information collected automatically may include usage details, IP addresses, and information collected through cookies, web beacons, and other tracking technologies.
From third parties, for example, our business partners or authorized resellers.
Information You Provide to Us. The information we collect may include:
Information that you provide by filling in forms on our Website or when purchasing products or services. This includes information provided at the time of registering to use our Website (if applicable), subscribing to our service, or requesting further services. We may also ask you for information when you report a problem with our Website.
Records and copies of your correspondence including email addresses, if you contact us.
Details of transactions you carry out and of the fulfillment of your orders. You may be required to provide financial information before placing an order through our Website or otherwise.
Your search queries on our Website.
Billing information such as credit card details and billing address.
Information We Collect Through Automatic Data Collection Technologies. As you navigate through and interact with our Website, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including:
Details of your visits to our Website, including traffic data, location data, logs, and other communication data and the resources that you access and use on our Website.
Information about your computer and internet connection, including your IP address, operating system, and browser type.
The information we collect automatically may include personal information, but we may maintain it or associate it with personal information we collect in other ways or receive from third parties. It helps us to improve our Website and to deliver a better and more personalized service.
The technologies we use for this automatic data collection may include:
Flash Cookies. Certain features of our Website may use local stored objects (or Flash cookies) to collect and store information about your preferences and navigation to, from, and on our Website. Flash cookies are not managed by the same browser settings as are used for browser cookies. For information about managing your privacy and security settings for Flash cookies, see Choices About How We Use and Disclose Your Information.
Web Beacons. Pages of our the Website and our e-mails may contain small electronic files known as web beacons (also referred to as clear gifs, pixel tags, and single-pixel gifs) that permit the Company, for example, to count users who have visited those pages or opened an email and for other related website statistics (for example, recording the popularity of certain website content and verifying system and server integrity).
We do not control these third parties' tracking technologies or how they may be used. If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly. For information about how you can opt out of receiving targeted advertising from many providers, see Choices About How We Use and Disclose Your Information.
How We Use Your Information
We use information that we collect about you or that you provide to us, including any personal information:
To present our Website and its contents to you.
To provide you with information, products, or services that you request from us.
To fulfill any other purpose for which you provide it.
To provide, operate, maintain, improve and promote our products and services.
To provide you with notices about your subscription, including expiration and renewal notices.
To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.
To notify you about changes to our Website or any products or services we offer or provide though it.
In any other way we may describe when you provide the information.
For any other purpose with your consent.
We may also use your information to contact you about goods and services that may be of interest to you. If you do not want us to use your information in this way, please check the relevant box located on the form on which we collect your data. For more information, see Choices About How We Use and Disclose Your Information.
We may use the information we have collected from you to enable us to display advertisements to our advertisers' target audiences. Even though we do not disclose your personal information for these purposes without your consent, if you click on or otherwise interact with an advertisement, the advertiser may assume that you meet its target criteria.
Disclosure of Your Information
We may disclose aggregated information about our users, and information that does not identify any individual, without restriction.
To our subsidiaries and affiliates.
To contractors, service providers, and other third parties we use to support our business.
To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of the Company's assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information held by the Company is among the assets transferred.
To fulfill the purpose for which you provide it.
For any other purpose disclosed by us when you provide the information.
With your consent.
We may also disclose your personal information:
To comply with any court order, law, or legal process, including to respond to any government or regulatory request.
If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of the Company, our customers, or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction.
Choices About How We Use and Disclose Your Information
We strive to provide you with choices regarding the personal information you provide to us. We have created mechanisms to provide you with the following control over your information:
Disclosure of Your Information for Third-Party Advertising. If you do not want us to share your personal information with unaffiliated or non-agent third parties for promotional purposes, you can opt-out by checking the relevant box located on the form on which we collect your data. You can also always opt-out by sending us an email stating your request to the email address provided herein.
Promotional Offers from the Company. If you do not wish to have your contact information used by the Company to promote our own or third parties' products or services, you can opt-out by checking the relevant box located on the form on which we collect your data or by sending us an email stating your request to the email address provided herein. If we have sent you a promotional email, you may send us a return email asking to be omitted from future email distributions. This opt out does not apply to information provided to the Company as a result of a product purchase, warranty registration, product service experience or other transactions.
Targeted Advertising. If you do not want us to use information that we collect or that you provide to us to deliver advertisements according to our advertisers' target-audience preferences, you can opt-out by sending us an email stating your request to the email address provided herein.
We do not control third parties' collection or use of your information to serve interest-based advertising. However these third parties may provide you with ways to choose not to have your information collected or used in this way. You can opt out of receiving targeted ads from members of the Network Advertising Initiative ("NAI") on the NAI's website.
We have implemented measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, and disclosure.
The safety and security of your information also depends on you. Where we have given you (or where you have chosen) a password for access to certain parts of our Website, you are responsible for keeping this password confidential. We ask you not to share your password with anyone.
Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted to our Website. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Website.
Policy Towards Children
The Company’s services and Website are not directed to individuals under 13. The Company does not knowingly collect personal information from children under 13. If we become aware that a child under 13 has provided us with personal information, we will take steps to delete such information. If you become aware that a child has provided us with Personal Information, please contact the Company.
Park Bench Solutions, Inc.